Pedagogy & the Standards of Review

[RJLipkin at aol.com]

I don't think this has  anything to do with "hiding the ball" which usually 
refers to the process of  "Socratic" (a misnomer if ever there was one) 
practice of having students work  through a series of hypothetical where a definite 
(if not always determinate)  answer ("ball") is sought. However, I agree that 
exposition of the standards of  review should come with a qualification, 
namely, where the cases do not reflect  the conventional understanding go with the 
cases especially if a particular fact  pattern on the final triggers the 
issues(s) in a case we discussed in  class. If black letter standards of review 
conflict with the  analysis in the case, use the analysis in the case rather than 
forcing the  black letter standards of review on to the fact patter. 
 
        Perhaps my query is not  only pedagogical, but more a jurisprudential 
puzzle concerning why courts would  articulate standards of review and then 
fail to follow them in a reasonable  manner, if that's indeed that's what they 
do.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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